Gales Holdings Pty Ltd v Minister for Infrastructure and Planning - [2005] NSWLEC 617

No judgment structure available for this case.

Set aside by Appeal: [2006] NSWCA 388 - appeal allowed

Land and Environment Court

of New South Wales

CITATION:
Gales Holdings Pty Ltd v Minister for Infrastructure and Planning and Anor. [2005] NSWLEC 617
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Gales Holdings Pty Ltd
RESPONDENTS:
Minister for Infrastructure and Planning and Anor.

FILE NUMBER(S):
41326 of 2004

CORAM:
Bignold J

KEY ISSUES:
Injunctions and Declarations :- challenge to validity of LEP Amendment—Alleged failure to consider relevant materials—alleged unreasonabless of Council’s decisions.

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
ss 57
65
66
69 and 70

CASES CITED:
Burns Philip Trustee Co v Wollongong City Council (1983) 49 LGRA 420;
El Cheikh v Hurstville City Council (2002) 121 LGERA 293;
Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10;
Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549;
Prineas v Forestry Commission of NSW (1984) 53 LGRA 160;
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 · Smith v Wyong Council (2003) 132 LGERA 148;
Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 27-29/04/2005

DATE OF JUDGMENT:

11/01/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr T Robertson SC with Ms J Jagot, Barrister
SOLICITORS
Woolf Associates
FIRST RESPONDENT
submitting appearance
SECOND RESPONDENT
Mr J Webster SC with Dr S Berveling, Barrister
SOLICITORS
Stacks the Law Firm

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

1 November 2005

41326 of 2004 GALES HOLDINGS PTY LIMITED v THE MINISTER FOR INFRASTRUCTURE AND PLANNING; TWEED SHIRE COUNCIL

A. INTRODUCTION

1 HIS HONOUR: In these class 4 proceedings, the Applicant challenges the validity of the Tweed Local Environmental Plan (Amendment No 14) which came into force on 6 August 2004 (the LEP Amendment No 14) when it was published in Government Gazette No 131 on that day.

2 The LEP Amendment by virtue of cl 3 applies to only a single parcel of land known as lot 32 Deposited Plan 847319, having an area of some 32 hectares fronting Tweed Coast Road, Chinderah (the subject land). The subject land was immediately prior the coming into force of LEP Amendment No 14 included in Zone No 5(a) “Special Uses” under the Tweed Local Environmental Plan 2000 (the LEP). By virtue of cl 4 of LEP Amendment No 14, the zoning of the subject land was changed so that the majority of the land (some 19 hectares) was zoned Industrial 4(a) with a smaller pocket being zoned Special Uses 5(a) “Stormwater Management and Sewerage Reticulation” and the most easterly section of the land being zoned 7(l) “Environmental Protection – Habitat”. A copy of the map incorporated in LEP Amendment No 14 showing the several zonings of separate portions of the subject land is annexed hereto and marked “A”.

3 At the time of the rezoning, the subject land was owned by the Council and the eastern part was used as the site of the Council’s Sewerage Treatment Plant servicing Kingscliff, a coastal village within the Tweed Shire.

4 The subject land was subject to option agreements and contractual arrangements that were entered into by the Applicant (and a related Company) and the Tweed Shire Council (second Respondent) in 2001 which provided for the sale of the majority portion of the subject land to the Applicant (subject to its rezoning to an Industrial Zone) and the purchase by the Council from the Applicant of other land within the immediate locality for the purpose of relocating to that land the Council’s Sewerage Treatment Plant (STP).

5 In the proceedings in their original form, the only Respondent was the Minister for Infrastructure and Planning who had made LEP Amendment No 14 at the Council’s request, however, on 10 December 2004, the Applicant joined the Council as the second Respondent. Thereafter, the Minister on 13 December 2004 filed a submitting appearance.

6 Although the Applicant’s further Amended Points of Claim assert a number of grounds in support of the challenge to the validity of LEP Amendment No 14 essentially three separate grounds are relied upon (namely (i) the failure of the Council to have regard to material considerations—namely two retail studies—one prepared by Consultants for the Applicant and one prepared by Consultants for the Council when preparing an environmental study and when deciding to exhibit the draft LEP Amendment No 14 and when deciding to request the Minister to make LEP Amendment No 14; (ii) the failure of the Council to comply with relevant statutory requirements imposed by the Environmental Planning and Assessment Act 1979 (the EP&A Act) in relation to (a) the preparation of the required environmental study and (b) the public exhibition of the draft LEP Amendment No 14 and the supporting environmental study; and (iii) the relevant decisions of the Council in respect of the draft LEP Amendment No 14 were legally “unreasonable”.

7 The Council resists all these challenges to the validity of the LEP Amendment No 14 and also raises discretionary defences.

8 Before considering these separate grounds for the asserted invalidity of LEP Amendment No 14, it is necessary to record the relevant facts concerning the history of LEP Amendment No 14 (noting that most of the relevant evidence was documentary). The history which is quite detailed will be narrated in chronological sequence but without reference to the contemporaneous histories of the retail planning studies which the Applicant asserts should necessarily have formed a relevant part of the history of the LEP Amendment No 14 (in the sense that the content of those studies should have formed part of the Council’s relevant decisions taken in respect of the environmental study and the draft LEP Amendment No 14) and to other contemporaneous planning studies undertaken by or on behalf of the Council. Those separate histories will also be narrated in chronological sequence after I have first recorded the relevant history of the LEP Amendment No 14. It will then be convenient to consider the Applicant’s separate bases for the asserted invalidity of LEP Amendment No 14. Insofar as the Applicant’s challenge relies heavily upon the content of the retail planning studies, it will later be demonstrated that the relationships between all these other contemporaneous planning studies (including the retail planning studies and the separate processes to LEP Amendment No 14 relied upon by the Applicant) is extremely complex—both content-wise and timing-wise. These problems are compounded by virtue of the changing content at various times in the relevant histories.

THE RELEVANT HISTORY OF THE LEP AMENDMENT

9 On 4 October 2000, the Council passed the following resolutions in respect of its Sewerage Treatment Plant at Kingscliff:

10 The terms of these resolutions were notified to the Department of Urban Affairs and Planning by letter dated 16 October 2000 and accompanying information was supplied “in accordance with cl 6 of the Environmental Planning and Assessment Regulation 1994”.

11 By letter dated 25 January 2002, the Department notified the Council as follows:

Thank you for your latter of 16 October 2000 advising of the Council’s decision to prepare the above local environmental plan. The Director-General has decided that there is a need for an environmental study in this case. Therefore, sections 57 and 61 of the Environmental Planning and Assessment Act 1979 will apply to this draft plan. The environmental study should address the following issues:

It is noted that an alternative location for the sewerage treatment plant is likely to have a significant effect on Council’s Urban Release Strategy for the area. I understand also that there is a large area of uncommitted land in West Kingscliff. This proposed local environmental plan presents an opportunity to consider the current zoning of all of this area and to review whether it provides the best solution for future development. I, therefore, encourage Council to undertake an amendment of its Residential Development Strategy for Kingscliff to take account of development opportunities in the area. The Strategy would set the framework for future development in the Kingscliff area.

Should you issue a section 65 certificate under delegation to allow the exhibition of the plan, in accordance with section 66 of the Act, you are requested to forward a copy of the exhibited plan, together with a copy of the certificate, to the Department.

12 Following receipt of the Department’s advice, the Council undertook action of consulting relevant public authorities conformably to the statutory consultation requirements of the EP&A Act, ss 62 and 34A.

13 Soon thereafter, the Council invited selective tenders in respect of its Consultant’s Brief for the preparation of an Environmental Study for the subject land, including inviting GeoLink to tender.

14 On 6 November 2002, the Council passed the following resolutions—

Tweed Coast Strategy

15 It is to be noted that the draft Strategy document included at pp 34/35 discussion of the “Relocation of the Kinsgcliff Sewerage Treatment Plant” including the following passages at pp 34 and 35 respectively—

Potential industrial and commercial uses of the site must be viewed within a district and shire wide context. In particular, if the land were to be rezoned industrial, this would result in over 50ha of zoned industrial land to the west of Kingscliff. The desirability of the location and this amount of industrial land would need further consideration. This would include consideration of the planning objectives for the supply of industrial land in the Shire, the anticipated market demand for industrial land in this location, the desired future character of West Kingscliff and the capacity of the land for further development. Any consideration of the use of the land for commercial/retail purposes would need to take account of the recommendations of the Kingscliff Centres Study (p 34).

6.2.8 That should the environmental impact statement and other assessments conclude that the current sewerage treatment works can be located to the site west of Chinderah Road, that – then subject to land contamination assessments – a draft local environmental plan amendment be prepared for the current site to rezone to residential 2(c) with subsequent development control plans assessing the appropriateness of school, retail and commercial developments on the land. (p 35)

16 The reference in the first extracted passage to the “Kingscliff Centres Study” is a reference to the Study prepared on behalf of the Council by Patrick Partners (September 2001) which is discussed at pp 14 to 17 (inclusive) of the draft Strategy document which discussion includes the following passage at 16:

Taking account of the identified issues, the Kingscliff Centres Study has indicated that the preferred location for a district centre is along Turnock Street at West Kingscliff. This has been identified as the preferred location, due to its existing and potential level of accessibility to the whole district and adjoining residential areas and the potential for new urban development and additional road connections. This area has existing infrastructure in place and would facilitate development to occur as a natural extension of the existing town centre. Development could commence almost immediately.

17 By letter dated 12 November 2002, the Council notified Planning NSW of its resolution passed on 6 November 2002. The letter explained the reason for the resolution as follows:

Tweed Coast Strategy

industrial purposes

18 The Council’s letter sought the Departments advice “as to whether the original advice on the preparation of this draft Tweed LEP Amendment is still relevant”.

19 Planning NSW responded by letter dated 29 November 2002 in the following terms:

Thank you for your letter of 16 October 2002 advising of its revised proposals for the above site.

It would appear that the specifications identified in the Department’s letter of the 25 January 2002 will be adequate to cover the revised plans for the treatment site. However, in addressing the issue of Council’s Urban Release Strategy, Council should include an assessment of its commercial retail needs in the Kingscliff and Tweed Coast area. In this regard, I refer to the Departments letter of 11 November 2002 in regards the draft Tweed Coast Strategy 2002.

I trust this clarifies the requirements for the environmental study for the above amendment.

20 The reference by Planning NSW to “its letter of 11 November 2002 in regards the draft Tweed Coast Strategy 2002” is a reference to its letter to the Council (apparently in response to the Council’s invitation for comment on the draft strategy) which was in the following terms:

Thank you for forwarding the above discussion paper to the Department requesting comment on the paper. I would like to take this opportunity to congratulate Council on the strategic approach it is taking to the planning and development of the coastal area of its Shire. The Department supports the sustainable approach taken and the nature of the vision and policy principles. The development of a structure/master planning process is essential to protecting and directing development in this sensitive coastal location. The Department also supports the development of a hierarchy of centres as a most appropriate approach to the provision of facilities and services.
While the Department supports the approach taken by Council, it may have been appropriate to involve us earlier in the development of the strategy. When the future of sensitive coastal areas that are under intense development pressure such as this is under consideration, a partnership between the Council and Planning NSW could be of significant benefit to the process and the outcome.

The discussion paper and the summary sheet identify possible locations for a district centre although the term is not clear as the summary paper also refers to major centre. The Department would not support the option to locate a district centre on the former Sewerage Treatment Plant site as it is remote from the main areas of Kingscliff and Kings Forest. A centre in this location is not strategically located and would encourage local traffic onto the Pacific Motorway. A site more central to the future population would be much more sustainable and greatly improve the liveability of the locality.

It is noted that protected lands for environment and coastal significance have been identified along the immediate coast and in areas to the west of the settlement areas. However, no east-west vegetation corridors have been provided as links between these lands and to provide breaks in the potential urban strip along the coast. The result would be urban sprawl, which would be contrary to the coastal policy and to community interests and values. Planning NSW considers it is essential that strategically placed east-west corridors be dedicated in the interests of the ecology and the future community. Having said that, we recognise that possible changes to the development yield from Kings Forest may alter this situation. It might be appropriate to defer further consideration of the strategy until that situation is resolved.

I trust these comments are of value in progressing this strategy/master plan. The Department would be pleased to assist Council in its further development.

21 In January 2003, the Council submitted to the selective tenders a modified Consultant’s brief for the preparation of the Environmental Study for the subject land. GeoLink revised its offer by letter dated 23 January 2003 noting in its “Appreciation of the Brief” “that the draft Tweed Coast Strategy identifies the site as a possible Kingscliff town centre but that Planning NSW do not agree with the location of this Centre at the site”.

22 On 19 February 2003, the Council resolved to appoint GeoLink to undertake the required Environmental Study.

23 On 23 July 2003 GeoLink submitted to the Council the Environmental Study in draft form inviting comment from the Council’s planning staff. The Council’s Strategic Planning Development Services Unit provided comments on the draft Study by letter dated 28 August 2003 including the following comment on the “Draft Tweed Coast Strategy”

Council resolved on 2 July to place the draft into a development control plan for Kingscliff.

On 20 August 2003 Council has also resolved to undertake a Retail Development Strategy for the Tweed Shire

24 Late in October 2003 GeoLink submitted to the Council the final version of the Environmental Study. (It is a document of more than 100 pages). It records at p 3 in summary form the responses received from Planning NSW in respect of the required environmental study including the requirement in its letter of 29 November 2002 to the Council that “in addressing the issue of the Council’s Urban Release Strategy, assessment should be included of the commercial retail needs in the Kingscliff and Tweed Coast area”, and it provides specific references to the content of the Environmental Study addressing the relevant matters.

25 Those references include the following passages in Section 3.16 of the Study:

The site adjoins land zoned for industrial purposes to the north, the Tweed Coast Road and agricultural lands to the west, and residential development to the south and east, which is buffered from the site by rural residential uses and a lake to the south and the Kingscliff Drain and a stand of vegetation to the east. Whilst the surrounding land uses make the site more suitable for some land uses over others, they do not pose absolute constraints to a particular land use in themselves.

The site’s potential for use as a district commercial centre for the Kingscliff area has been considered as part of the strategic planning process that has occurred in the Kingscliff locality since 2000. Planning strategies for the Tweed Coast, namely the Kingscliff Centres Study (Patrick Partners 2001) and the Draft Tweed Coast Strategy (TSC 2002), have considered the site for district commercial purposes. DCP 9 and the Kingscliff Centres Study support a district centre closer to the existing Kingscliff town centre.

a centre next to the industrial estate would have major problems in becoming an active, vital, mixed use town centre (as required in the locality). The Centres Study expands on this concern, citing the following as reasons for the site being unsuitable for a district centre:

· Lacks features that would attract range of employers;

· Lower potential for walkable trade—the site is a drive to destination;

· Lacks features to encourage high density residential accommodation;

· Would compete with existing retail facilities;

· Cannot capitalise on beachfront walking opportunities;

· Site amenity would be impacted by the adjoining industrial land;

· The industrial estate would lose expansion potential; and

· The industrial site is better suited to bulky goods business.

The Centres Study emphasises the benefits of establishing a district commercial centre by way of consolidating and strengthening an existing commercial centre, as opposed to fragmentation and economic impact that is likely to be associated with new centres.

With regard to residential and industrial uses in the Kingscliff locality, development on the site can be buffered from future residential areas to the north east by the establishment of a habitat corridor and it would not adversely impact on agricultural uses to the west of the Tweed Coast Road. Industrial development on the land would be consistent with the industrial zoning of land immediately to the north and environmental works in the eastern portion of the site would be compatible with stormwater and habitat outcomes identified for Kingscliff in Sections 3.1, 3.3 and 3.5.

26 Section 6 of the Environmental Study (headed “Land Use Options”) discusses “various land use opportunities with respect to the biophysical and socio-cultural opportunities and constraints of the land”. It divides the site into three separate portions, including Portion A (19 hectares) “being generally cleared vacant with few biophysical constraints to development” “However the land is flood liable and would require fill to facilitate development”.

27 The discussion of potential land uses in Section 6.3 includes the following:

Development of the site for wholesale/trade industrial purposes has merit considering surrounding land uses, the biophysical environment, transport networks and demand for employment generating industry in the Tweed region. Further, according to Tweed Shire – Potential Industrial Land Investigation (TSC 2000b) the Tweed Coast has a need for additional industrial land. The study also indicates that there is a significantly higher demand for wholesale/trade industrial uses as opposed to manufacturing industrial uses.

The site has been demonstrated to have good suitability for wholesale/trade type industrial uses as opposed to manufacturing industries given the criteria identified in the investigation study (Section 4.5). The site could provide an extension to the existing and intended industrial land to the north. Wholesale/trade industrial uses may economically complement existing industries in the Ozone Street industrial estate and provide a focus for industrial development on the Tweed Coast.

Further, the site has excellent access to the major road network including the Pacific Highway and would generate minimal amenity impacts upon sensitive land uses such as residential and tourist areas given the buffering opportunities available (eg existing vegetated buffer along the eastern boundary of the site).

It is important to note that 50% of flood liable industrial zoned land should remain available for flood flow. This would limit the area of industrial development possible on the site.

Industrial development on the eastern portion of the site, in the location of existing STP infrastructure is, however, considered unsuitable given the value of the land as part of a habitat corridor and its identification as a site for a regional water quality control facility in the Kingscliff Catchment and Drainage Management Plan (WBC 1998).

Commercial

Planning strategies for the Tweed Coast have identified the site as being unsuitable for the development of a new district centre and support a site closer to the existing Kingscliff town centre. Therefore, this option is not considered further.

However, the site’s good accessibility to the major road network including the Pacific Highway provides support for commercial uses that primarily require good vehicular accessibility such as bulky goods or trade based retail. The Tweed Shire – Potential Industrial Land Investigation (TSC 2000b) identifies strong land demand for wholesale/trade uses. Given the site’s good access to the major road network, the site has potential to service the Tweed Coast area in this regard. The site also has the potential to economically complement nearby industries and may reduce the intrusion of commercial uses into nearby industrial areas thus serving to protect industrial land for industrial uses.

The size of the site also makes it suitable for the development of warehouse based retail or wholesale/trade uses. This type of commercial use of the site may provide a transition between northern industrial lands and residential areas to the south and east with minimal amenity impacts on residential areas given the vegetated buffer along the eastern boundary.

28 Section 7 of the Environmental Study contains the recommendations “based upon the findings of the Study” for the adoption of following land use zonings of the three differently designated portions of the site—

Portion A (19 hectares) – 3(c) Commercial and Trade

Portion B (5 hectares) – Part 5(a) Special Uses and Part 7(l) Environmental Protection (Habitat)

29 At its meeting held on 19 November 2003, the Council considered a report prepared by its Strategic Town Planning Unit on the Environmental Study and the recommended land use zonings (Amendment 14 to the LEP). The Report contains the following detailed comment from the Engineering Services disagreeing with the recommended zonings of the Environmental Study—

1. Planning Context

The LES (local environmental study) has failed to adequately consider the impact of surrounding zoned land uses and the proposed road network and how the recommended zones will fit into this planning context. As a result the LES recommendations will create zones that will not be compatible with surrounding land uses and the planned road network.

The area to the north of the subject land is zoned 4(a) Industrial. Any rezoning of the subject land to other that 4(a) must have regard to the future road network to ensure zone boundaries are consistent with this network and can be located on appropriate future road and/or cadastral boundaries. The recommendation for a conflicting zone (3(c)) makes it impossible to achieve appropriate zone boundary geometry.

Portion A

This zoning is opposed on the following grounds:-

There is a proposed east/west arterial road planned to bisect this area. This road is identified on Gales Holdings Master Plan and Council’s Draft Tweed Coast Strategy. The current detailed design for upgrading the Tweed Coast Road allows for a signalised intersection with this road as well as widening of the Tweed Coast Road for turning and merging lanes from the proposed road.

This road will sever the proposed 3(c) land leaving an isolated, triangular shaped piece of 3(c) land (north of the proposed road) surrounded by land zoned 4(a) Industrial. This zone mismatch will make it very difficult to later subdivide and some future lots in this vicinity may end up in two different zone.

Further to the east the proposed road will sever existing industrial land (again creating a geometrically difficult triangular piece of land) that will be adjacent to proposed 3(c) zone. This piece of land will also be difficult to integrate into future road and lot layouts.

For the above reasons all the proposed 3(c) land should preferably be zoned 4(a) industrial, but at the very least the section north of the proposed arterial road should be zoned 4(a).

(b) Flooding

reducing the social and financial costs resulting from the risks of occupying the flood plain

The draft amendments to DCP 5 provides guidelines (7.4) for flood compatible development on industrial and special uses land in this area. No guidelines have been developed for 3(c) Trade and Commerce uses.

(c) 3(c) Trade and Commerce is De facto Retail and Lead to Generation of High Traffic Volumes

Past liberal interpretations of LEP clause 8 to the 3(c) zone in Tweed Heads South have led to this area becoming a de facto retail area. The same is likely to occur in this location. The development of such a retail hub is opposed on a number of grounds:

· It will (despite the primary objective statement of the 3(c) zone, jeopardise the viability or function of the subregional or business centres as has already been demonstrated in Tweed Heads South.

· The 3(c) zone will generate considerably more traffic than the industrial alternative. Modelling has shown that two lanes will be required for the proposed east west arterial road with industrial zoning. If a higher level of use is allowed, the section from the Tweed Coast Road intersection to the first roundabout will need to be upgraded to 4 lanes.

This zone is proposed on the balance of land to be retained by Council that does not contain sewerage plant or assets.
This zone is opposed on the following grounds:

This division’s proposed primary use for this land is stormwater treatment wetlands, with secondary uses as an open space/landscaped area as part of a lineal park network along the Kingscliff drain. But the primary objectives of the 7(l) zone are:-

· To protect areas or features which have been identified as being of particular habitat significance

· To preserve the diversity of habitats for flor and fauna

· To protect and enhance land that acts a s a wildlife corridor

Urban stormwater quality management facilities and public utility undertakings are only permitted in this zone if they satisfy the provisions of clause 8, and given the primary zone objectives, there is a significant risk that future consent may be refused. The proposed 7(l) zone is therefore inconsistent with the divisions proposed uses for this land.

The whole area should remain zoned 5(a) Special Uses which provide flexibility for future use of the site (provided they are compatible with adjacent zoned).

It would be preferable for the draft LEP to exclude all of the land to be retained by Council from the draft LEP. This way it would remain 5(a) and not subject to the uncertainties of the LEP process.

4. Proposed East West Arterial Road

in kind

It may be preferable to exclude the proposed road and the widening of the Tweed Coast Road from any sale (contract permitting).

5. Engineering Services Division Recommendations

The draft LEP be exhibited with the following changes to the proposed zonings in the LES:

(a) The proposed 3(c) Commerce & Trade Zone be replaced with 4(a) Industrial Zone.

30 The Report of the Strategic Town Planning Unit includes the following response to the foregoing comments made by the Engineering Services Division:

As a matter of impartiality Council will need to consider these comments in relation to the Local Environmental Study without bias as a landowner. It is considered appropriate that the LES be exhibited as prepared by Council’s independent consultants and take the comments prepared by the Engineering Services Division into account as a submission to the public exhibition.

31 The Planning Report included the following “summary” of the options that were considered to be available to the Council—

Due to current strategic planning being undertaken for Kingscliff, including the preparation of Draft Development Control Plan No 51 – Kingscliff and the Tweed Retail Development Strategy, a certain level of flexibility needs to be maintained within the zoning of this site. This is to ensure that any proposed land uses identified from the DCP can be accommodated without a further LEP Amendment.

Currently there are three options available for the exhibition of this draft LEP Amendment:

1. That the draft LEP Amendment be exhibited as presented by GeoLINK. This requires a large degree of flexibility in the zone to accommodate any future land uses proposed by the current strategic land use planning documents currently being prepared. The potential problem lies in that if there are any inconsistencies, then a further LEP Amendment may be required.

2. The draft LEP be exhibited with zones presented by GeoLINK being amended in accordance with the Engineering Services Division recommendations.

strategic land use planning documents currently being prepared

32 The Council’s consideration of the Report produced the following resolution:

LEPs and Council Land — Guideline for Council using delegated powers to prepare LEPs involving land that is or was previously owned or controlled by Council.

2.

33 Following the Council’s resolution, Mr Douglas Jardine, Manager Strategic Planning, as the delegate of the Director-General, Department of Infrastructure Planning and Natural Resources, issued a certificate pursuant to the EP&A Act, s 65 on 2 December 2003 certifying that the draft local environmental plan referred to in the Schedule to the Certificate “may be publicly exhibited in accordance with Section 66 of the Act”.

34 The Schedule to the s 65 Certificate contained the following description of the draft Local environmental plan:

remediation

35 The draft LEP Amendment No 14 written instrument relevantly (for present purposes) included the following provisions:

This plan aims to:

a.) rezone land to which this plan applies at Kingscliff to allow for Commerce and Trade and environmental protection land uses;

b.) …………………..

c.) ……………………

3. Land to which this plan applies

Tweed Local Environmental Plan 2000 (Amendment No 14)

Tweed Local Environmental Plan 2000 is amended by:

Tweed Local Environmental Plan (Amendment No 14).

(b) ………………………….

36 The amendment to be effected by cl 4 was to be achieved by virtue of showing the subject land with its new zonings (different from its existing zoning) on the map marked Tweed Local Environmental Plan 2000 (Amendment No 14) which map was listed in Part 2 of Schedule 6 to the Tweed Local Environmental Plan 2000 (the LEP) and by virtue of the following definition of “zone map” contained in Schedule 1 to the LEP:—

Zone map

Tweed Local Environmental Plan 2000

37 The map referred to in cl 3 of the draft LEP (Amendment No 14) shows the subject land with the relevant zonings designating different parts thereof “Industrial 4(a)”, “Special Uses 5(a)” and “Environmental Protection (Habitat) 7(l)”. (It is obvious that there is textual conflict between the 4(a) Industrial Zoning shown on the relevant map and the “aim” stated in paragraph (a) of cl 2 of the written text of the draft LEP (Amendment No 14) “to rezone land….to allow for Commerce and Trade….land uses”).

38 The public exhibition of the draft LEP (Amendment No 14), together with the relevant map and the Environmental Study pursuant to the EP&A Act, s 66 which occurred for the period of 30 days commencing on 3 December 2003 included the following additional documents:

· S 65 certificate

· Advertisements of the public exhibition

· Supplementary notes

· Council’s resolution 4 October 2000

· Council’s resolution 6 November 2002

· Council’s resolution and report 19 November 2003

· Best practice guidelines

· Coastal Council checklist

· Statutory checklist

39 The “Advertisement of the public exhibition” included the following content:

Draft Tweed Local Environmental Plan 2000 – Amendment No 14, Lot 32 DP 847319, Kingscliff Sewerage Treatment Plant, Tweed Coast Road.

Pursuant to Section 66 of the Environmental Planning and Assessment Act 1979, notice is hereby given of the exhibition of a draft amendment to the Tweed Local Environmental Plan 2000 and accompanying environmental study and supplementary material. The draft amendment and environmental study are in respect of the existing Kingscliff Sewerage Treatment Plant, Lot 32 DP 847319, Tweed Coast Road, Kingscliff.

remediation

The draft plan does not fully reflect the recommendations of the environmental study prepared for Council by GeoLink (October 2003) that recommended a 3(c) Commerce and Trade zone for part of the site and not 4(a) Industrial zone as recommended by Council. Information on the reasons for this variation is on exhibition (Supplementary Information) with the environmental study and draft plan.

LEPs and Council Land—Guideline for Councils using delegated powers to prepare LEPs involving land that is or was previously owned or controlled by Council.

40 The Supplementary materials include the statement that “the reason for the inconsistency between the recommendation in the Environmental Study and the Council resolution of 19 November 2003 are contained in the following comments from the Council’s Engineering Services Division contained in the Council Report”. (There is then extracted the full text of the relevant comments (that I have earlier set forth in paragraph 29 of the the reasons.)

41 During the currency of the public exhibition of the draft LEP (Amendment No 14) consultant Town Planners (Jim Glazebrook and Associates) acting for Gales Holdings Pty Ltd (the present Applicant) sought and obtained an extension of time until 14 January 2004 to make submissions in respect of the publicly exhibited draft LEP (Amendment No 14).

42 By letter dated 14 January 2004, the Applicant’s Consultant Town Planners made a written submission on behalf of their client raising objections to the draft LEP (Amendment No 14) upon the following grounds—

· The proposed zonings are inconsistent with the draft LES (Local Environmental Study)

· The proposed zonings are inconsistent with recent expressions of Council policy in relation to planning for the site.

· The proposed zonings are based on outdated and/or erroneous technical advice.

· The draft amendment is premature given the pending Flood Model review by WBM and Retail Study by Core Economics.

43 The letter proceeds to elaborate upon these grounds including the following:

bulky goods retailing

3. As noted above, the draft Amendment pre empts the Flooding investigations currently being undertaken by WBM, and also pre empts the findings of the Retail Study, which we also understand is imminent. In this regard, the LES erroneously dismisses further consideration of the site for district level retail activity, on the basis that the Centres Study recommends a location in Turnock Street, despite the fact that the Centres Study has never been formally adopted by Council. Indeed, as noted above, the Council has since resolved to reject the Turnock Street site.

44 In addition to the Consultant’s submission, Dr Stephen Segal, a Director of the Applicant, wrote to the Council on 21 January 2004 objecting to the proposed rezonings upon a number of stated grounds, including the fact that the Gales’ companies owned more then 200 hectares of land at Kingscliff (together with a secure option to purchase the STP site) but despite the unique planning opportunities provided by such a land holding in the context of Kingscliff, neither the Council nor its consultants had appreciated the strategic value of the whole of this land holding, but instead had considered the STP site in isolation of the surrounding land holdings of the Gales companies. (Annexure “B” hereto is a copy of a plan showing the Applicant’s relevant land holdings as at 8 May 2001 upon which plan I have identified the subject land (the STP site) by cross hatching.)

45 In particular, objection was taken by Dr Segal to the Environmental Study’s dismissal of the site as being unsuitable for development as a District Centre upon the following grounds—

it makes this determination so that no further time and resources be spent….on allowing its possible location on Turnock St. to influence any planning decision.

compared

46 These two submissions made on behalf of the Applicant were included in the Council’s request to GeoLink seeking its review of the submissions made to the publicly exhibited draft LEP Amendment No 14. GeoLink provided the Council with its review of submissions by letter dated 24 February 2004. That review also included a response to the Council’s request that GeoLink review its recommendations for the rezoning to “3(c) Commerce and Trade” of portion of the STP site. That response included the following:

wholesale/trade

Two studies are currently underway (the findings of which were not available when the LES was prepared; nor are they available now) that may provide a greater level of certainty with regard to the appropriateness of a 3(c) Commerce and Trade zoning for the site.

Flooding

unusable

There are no specific guidelines that can be used to compare the impacts of such business disruption for industrial versus commerce and trade uses. However, these results are currently not available and we are advised that they might not be available for some time. It may therefore be wise to be cautious regarding the 3(c) zoning at this time.

Retail Strategy

Commerce and trade zones generally have a retail component, albeit of a type and scale that is not compatible with a conventional business zone (ie bulky goods). To that end, the appropriateness of a commerce and trade zoning needs to be examined in a wider retail context, to determine where this type of retail demand is located and whether the zoning of this land would have any retail impacts (positive or negative) on the existing Kingscliff retail centre. Insufficient detail currently exists to enable a comprehensive assessment of these matters.

I note, however, that a Shire-wide retail study, being undertaken for Council by CoreEconomics, is currently under way. That study is examining conventional retail as well as commerce and trade uses and will provide more information upon which to base the future zoning of the site. However, we are advised that its conclusion is some time away.

Given the urgent need to commence the establishment of a new Sewerage Treatment Plant to service the Kingscliff locality, and the fact that the rezoning of this site is the first step in this process, there are significant concerns relating to delaying a decision about the zoning of this site until the retail study is concluded.

safest

47 In addition to the foregoing response GeoLIink provided specific comments on the submissions that had been made to the draft LEP (Amendment No 14) including those made by Dr Segal on behalf of the Applicant and those made by the Planning Consultants on behalf of the Applicant.

48 The comment made in response to Dr Segal’s submission that “commercial zoning (of the STP site) should not be excluded from the study” was as follows:

a centre next to the industrial estate would have major problems in becoming an active, vital, mixed use town centre

49 In response to Dr Segal’s submission that the study had ignored the Council’s resolution in July 2003 not to proceed with a District Centre at Turnock Street the following comment was made:

Regardless of this resolution the Kingscliff Centres Study indicates that the subject site is not an appropriate location for a district retail centre.

50 In response to the Applicant’s Consultant Planner’s submission that “proper” structure planning should be undertaken for West Kingscliff rather than a “piecemeal” approach, GeoLink’s comment was as follows:

Agree. However, Council have severe time constraints in relation to the establishment of a new STP site. Council’s Engineering Services Division has advised that they cannot wait until such structure planning is completed due to increased sewer demand and the constraints of the existing system. They advise that immediate action is required to ensure that service capability will exist for future urban development.

51 In response to the Consultant’s submission that industrial zoning was “not compatible” with the recent expressions of the preferred land uses for the area in the form of the Tweed Coast Strategy 2003 and the draft DCP No 9 – West Kingscliff GeoLink’s comment was as follows:

Option 3

the site is close to the motorway and therefore has excellent private vehicle access but is very much a stand-alone centre that will fragment Centre Services from the existing Kingscliff Town Centre. Amended draft DCP No 9 notes that the site is an area proposed for extension of business and industrial area adjacent

52 At its meeting held on 3 March 2004, the Council considered a Report from its Strategic Town Planning Unit recommending that the Council make specified amendments to the draft LEP (Amendment No 14) (the only relevant amendment for present purposes is the deletion from cl 2(a) of the words “Commercial and Trade” and the substitution of the word “industrial” thereby eliminating the textual conflict appearing in the draft LEP Amendment No 14) and that the amended draft LEP Amendment No 14 be forwarded to the Director-General of DIPNR for the preparation of a report in accordance with the EP&A Act, s 69. The Report included a statement of the submissions that had been received in respect of the public exhibition and extracted the entirety of GeoLink’s review of those submissions.

53 At that meeting the Council also considered a facsimile transmission received by the Council earlier that day from the Applicant’s Consultant Town Planner (apparently submitted in the knowledge of the content of the Report that had been submitted to the Council) with the request that it be distributed to all Councillors attending that meeting. The facsimile transmission expressed the Applicant’s concern at the proposed rezonings and at the process, and requested the Council not to proceed with the rezoning.

54 The facsimile transmission included the following submission:

best uses

Our client is confident that a proper and objective evaluation of the yet to be completed retail and flood studies, will demonstrate that the land is suitable for a range of other uses, including commercial uses.

Gales Holdings has already obtained a retail study (JHD Advisors) which identifies the suitability of this site for commercial and retail purposes. Details from the analysis have been provided to the Council (Mayor) and its Retail Consultant (Core Economics) in or about October 2003.

· The Centres Study has never been adopted by the Council, and

· Council has resolved that Turnock Street would not be considered as the location of the District Centre.

While Gales Holdings also wants a speedy resolution of this matter, it must not come at the expense of a proper planning analysis and preferred planning outcome.

55 At that Meeting the Council passed the following resolution:

Forwards all necessary material to the Department of Infrastructure, Planning and Natural Resources so that the Director General may prepare a report in accordance with Section 69 of the Environmental Planning and Assessment Act for the amendment of Tweed Local Environmental Plan 2000 (No 14) Kingscliff Sewerage Treatment Plant, Kingscliff.

56 By letter dated 11 March 2004, the Council requested DIPNR to prepare a report in accordance with the EP&A Act, s 69 (the Council indicating that since it owned the land and had entered into an agreement to sell it, it was inappropriate that the Council itself prepare the s 69 Report in accordance with an available delegation to the Council).

57 By letter dated 23 April 2004 DIPNR advised the Council as follows:—

I respect the Council’s decision to seek the Minister’s agreement to make the plan. However, the Minister and the Department have had a number of representations seeking a variation to the plan to allow some commercial development on the land. I understand that Council has also received similar representations. It is acknowledged that any such zoning for commercial development should only proceed after the preparation of a Commercial strategy identifying the site as an appropriate location for commercial development in the Kingscliff area. None the less, the Department is reluctant to proceed with the draft plan which reduces options for commercial development in this area if those options have not been considered.

On the basis of the above representations, the Department is seeking your advice on whether the Council wishes the Department to proceed with the plan as submitted or whether it wishes to reconsider it in light of the representations. In this regard, has the existing undeveloped industrially zoned land in the vicinity of the sewerage plant been considered for commercial development? Your early advice on the plan would be appreciated. We would be pleased to meet with Council if that would assist the process.

58 The Council responded by letter dated 30 April 2004 in the following terms:

In the Environmental Study (ES) the potential use of the land was considered for commercial as well as for industrial purposes. In considering all of the environmental factors the ES recommended that the best zone for the land would be 3(c) Commerce and Trade.

Your correspondence suggests that if Council wishes to pursue a commercial zone for the land that the LEP Amendment should be paused until such time as a commercial strategy has been undertaken for the Kingscliff area.

Council has debated the issue of establishing a Council policy on the development of a district centre in Kingscliff for some time. Currently a Retail Centres Strategy is being finalised for the Tweed Shire and this will further the economic and retail considerations of a district centre in Kingscliff.

In the light of the considerations already undertaken in the ES and Council’s resolution to pursue an Industrial 4(a) zone in preference to a commercial zone it is preferred that the Department proceed with the making of the Plan as submitted.

59 On 29 June 2004, the Applicant’s Consultant Town Planner again wrote to the Council requesting that it reconsider the proposed industrial zoning.

60 The Council did not respond until it replied by letter dated 20 August 2004 (by which time the LEP Amendment No 14 had been made by the Minister and had come into force on 6 August 2004 upon its publication in the Government Gazette No 131 of that date.) The Council’s response indicated that any request for a different zoning of the rezoned land would need to be submitted after the rezoning had been effected.

61 In the meantime, the delegate of the Director-General of DIPNR had prepared the s 69 Report to the Minister dated 20 July 2004 and the Minister had approved of the recommendation outlined in the Report to make the LEP (Amendment No 14). The s 69 Report included the following passage concerning the representations that had been made by Gales Holdings:

10. Gales Holdings which is purchasing the land, has suggested the site as appropriate for a district centre for the Kingscliff – Tweed Cost area and suggests it be zoned appropriately. However, Council’s consultant found that a commercial zoning was not appropriate based on the results of the Kingscliff Centres Study. The study concluded that a centre next to existing industrial land (land to the north of the subject land) would have major problems in becoming an active, vital mixed use town centre (folio 199). While a commercial/retail strategy has not been completed that will identify a suitable site for such a centre, it is inappropriate to defer a decision on this plan for such a strategy. Should further studies identify the land as suitable for commercial and/or retail development, an amending plan can proceed to reflect this.

62 The s 69 Report appears to have been prepared by the North Coast Regional Office of DIPNR which had submitted the draft s 69 Report under cover of a memorandum concerning the request by Gales Holdings to defer the rezoning. That memorandum included the following:

Background

The Deputy Director General and Deputy Regional Director, North Coast met with Gales Holdings earlier this year to discuss the future planning of their land and the proposed rezoning of the above site.

Council has entered into a contract with Gales Holdings regarding a land swap to relocate the sewage treatment plant and rezone the land.

Council following the preparation of an environmental study and exhibition of the draft LEP resolved to zone the land 4(a) Industrial. The environmental study indicated that the land could be zoned commercial or industrial.

Prior to forwarding the LEP to the Minister the North Coast office sought your advice and requested council to confirm its decision prior to forwarding the plan.

Council advised that the plan be made in the form submitted to the Minister.

Copies of the memo to your office, briefing to the Minister, section 69 report and response from council are attached for your information.

Issue

Gales Holdings contends that council has not made the correct decision in recommending the industrial zoning of the land.

Comment/Options

The matters raised by the LEP are of a local nature and do not raise matters of state or regional planning significance. A full assessment has been made by the North Coast Office and it is recommended that the plan can be made as submitted (refer attached section 69 report). Note that the plan is with the Minister for decision.

Council has recommended that the land be zoned 4(a) Industrial.

The issues of the land swap re the sewage treatment site and any contracts for exchange of land are matter for council and Gales Holdings.

63 On 3 August 2004, the Minister approved the recommendation contained in the s 69 Report and made the LEP (Amendment No 14) which was published in Government Gazette No 131 of 6 August 2004 upon which date it took effect pursuant to the EP&A Act, s 34(5).

THE CONTEMPORANEOUS PLANNING STUDIES

64 In its Further Amended Points of Claim filed on 22 April 2005, the Applicant alleges that there were two retail planning reports that the Council should have considered in making its relevant decisions in the course of the history of LEP Amendment No 14, namely (i) the Retail Assessment Report prepared on behalf of the Applicant by JHD Consultants dated 18 February 2003 which was submitted to the Council by the Applicant as a submission in respect of the Council’s publicly exhibited draft Tweed Coast Strategy; and (ii) the “Tweed Shire Retail and Centres Strategy Report” prepared on behalf of the Council by Core Economics, the first draft of which was originally submitted to the Council’s Planning Staff on or about 31 October 2003 and a revised version of which was submitted to the Council’s Planning Staff on or about 15 November 2003 and the final version of which was submitted to the Council’s Planning Staff on or about 12 January 2004.

65 In addition to these two retail planning reports, there are two further planning studies or reports that came into existence during the history of LEP Amendment No 14, being (i) the Kingscliff Centres Study (2001) prepared by Council’s Planning Consultant, Patrick Partners; and (ii) the Council’s Tweed Coast Strategy prepared by Council’s Planning Staff (which was first publicly exhibited in late 2002 as a discussion paper and thereafter was publicly exhibited as a draft development control plan in July/August 2003 and ultimately was adopted by the Council on 19 November 2003 as Development Control Plan No 51).

66 The Environmental Study prepared by GeoLink contains references to these two further planning studies but does not refer to the content of the two retail planning studies that are relied upon by the Applicant.

67 Although each of these four planning studies makes specific and significant reference (albeit in the case of two of them where the relevant content changes at various times in the relevant histories) to the subject land (ie the STP site) it is important to appreciate that each was addressing a wider focus or topic than that particular land (being either the Kingscliff area in particular or the Tweed Coast area more generally).

68 The chronological histories of these four further planning studies should also be noted, as a prelude to gaining a proper understanding of the relationships of the respective processes and contents of these planning studies with LEP Amendment No 14. (These relationships are expounded in the affidavit evidence of Douglas Jardine, the Manager of the Council’s Strategic Town Planning Unit who appears to be the Council Planner most involved in all of these studies and in the processes applicable to LEP Amendment No 14.)

69 It is to be noted at the outset that the history of each of these four further planning studies commenced after the Council’s resolution in October 2000 to enter into contractual arrangements with the Applicant for the purchase by the Applicant of part of the Council’s subject land (subject to its rezoning to an Industrial Zone) and for the purchase by the Council from the Applicant of land for the relocation thereto of the Council’s existing STP then occupying the eastern sector of the subject land.

70 In February 2001, the Council commissioned Patrick Partners to undertake “a centres study on the optimum placement, status and configuration of centres in the Kingscliff growth corridor…..to assist the Council to understand the likely benefits and constraints of alternate centre options and configurations, the implications of recent decisions on land use in the area, and the role and function of each centre”.

71 The study identified the “Kingscliff corridor” as that part of the Tweed Shire along the coastline between the Tweed River and Pottsville and bounded on the west by the Pacific Highway.

72 Section 3 of the study contains a discussion of the “centre structure and location options”. It includes identifying Kingscliff as the location for a “district centre” and expresses the preference for that location to be at Turnock Street rather than in the vicinity of the Applicant’s industrial estate near the intersection of the Pacific Highway and Chinderah Road.

73 The Centres Study was publicly exhibited by the Council for a period commencing on October 2001 and was publicly re-exhibited in the first half of 2002. A submission was received by the Council from the Applicant’s Consultant Town Planner (Jim Glazebrook and Associates) to the effect that the determination of the most appropriate location for the District Centre could only be informed by a detailed retail study for the Shire and in particular the Tweed Coast. The Centres Study has not been adopted by the Council. Its original content has not been changed throughout the relevant history of LEP Amendment No 14.

74 On 21 March 2001 the Council resolved to prepare a Tweed Coast strategy to provide for—

75 A draft form of the Tweed Coast Strategy prepared by the Council’s Planning Staff was publicly exhibited as a discussion paper from 25 August 2002 to 8 November 2002.

76 It was in response to that public exhibition that the Council received the letter dated 11 November 2002 from Planning NSW (the terms of which are recited at par 20 of these reasons).

77 The draft Strategy which applied to the “Kingscliff District” included in Section 3 (“A vision and Policy Principles for the Kingscliff District”) the following statement:

In the Kingscliff district, there is currently enough land zoned for urban development to accommodate development for the next twenty years at historical rates of demand. The majority of this land is located in close proximity to the coast and includes West Kingscliff, South Kingscliff, and Kings Forest. At present, there is no need for additional land to be zoned for urban development within the District.

78 Section 3.3 enunciated a number of “Policy Principles” including the following:

Town Centres:

79 Section 4 of the draft Strategy deals with the subject “Urban Centres Hierarchy and Integrated Design”. Section 4.1 (“Overview”) included the following:

4.1 Overview

The planning and design of urban centres is recognised as being of critical importance to the identity, functioning and community values attributed to a locality. Given the envisaged growth potential of the Kingscliff district and the Tweed Coast, it is important that a hierarchy of urban centres be established. A hierarchy of centres enables Council to plan for the appropriate level and types of services to be provided at key locations. The hierarchy needs to consider the extent of district, local and neighbourhood business and community facilities required.

Council engaged Patrick Partners in 2001 to prepare the Kingscliff Centres Study. The draft Study was exhibited for public comment in September 2001 and during March to May 2002. It proposed a hierarchy of urban centres for the Kingscliff district and nominated preferred locations and design outcomes for district and local centres. The proposed hierarchy (detailed in Table 2 below) provides the basis for the policy statements contained in the following sections.

Table 2 Urban Centres Hierarchy

Urban Centre	Retail Floor Space	Population Catchment
District Centre	10,000m2	40,000 persons
Local Centre	1,500m2 – 6,000m2	10,000 persons
Neighbourhood Centre	1000m2	500 - 1,000 persons

80 Section 4.3 (District Centre) includes the following:

Council’s Tweed Shire 2000+ Strategic Plan nominated the preferred location for the district centre as being within the Kings Forest release area, which is likely to be the largest contiguous development area in the district. Investigations carried out as part of the LES process for Kings Forest have indicated that Kings Forest has significant access constraints (refer to Section 4.4 – Access to Kings Forest Release Area). The Kingscliff Centres Study concludes that West Kingscliff has some significant, relative locational advantages to Kings Forest for District Urban Centre development. Kings Forest also has developable areas of land are likely to be fragmented, a pattern that is not conducive to supporting a traditional urban centre with strong linkages to adjoining residential areas. The development timing of Kings Forest is also uncertain.

Taking account of the identified issues, the Kingscliff Centres Study has indicated that the preferred location for a district centre is along Turnock Street at West Kingscliff. This has been identified as the preferred location, due to its existing and potential level of accessibility to the whole district and adjoining residential areas and the potential for new urban development and additional road connections. This area has existing infrastructure in place and would facilitate development to occur as a natural extension of the existing town centre. Development could commence almost immediately.

Policy Statements

4.3.1

81 Section 6 of the draft Strategy dealt with “Social and Physical Infrastructure Provisions” and included in Section 6.2 (“Water Sewer and Drainage”) a discussion of the Council’s proposed relocation of the existing STP situate on the subject land including the content which I have recited in paragraph 15 of these reasons. (It was this content of the draft Strategy which caused the Council to broaden the options for rezoning of the subject land.)

82 Following the public exhibition of the Council’s draft Tweed Coast Strategy the Council conducted a public workshop attended by the Mayor and Councillors and Council Planning Staff and other persons including the Applicant and its advisors. At that meeting, the Council was given a Retail Assessment Report prepared on behalf of the Applicant by JHD Consultants by way of submission to the Council’s draft Tweed Coast Strategy. That submission contained the following “policy recommendations”—

5.1 In these circumstances it is appropriate policy to facilitate the development of Kingscliff as a strong Local Centre immediately. Such a policy will redress the existing substantial shortage of food and convenience shopping space and also provide for future increasing demand in the Kingscliff locality.

5.2 It is also appropriate policy to designate the Chinderah site as a District Centre for development in the medium term based on a discount department store with good access to the transport system. The Chinderah site is the only site of those under consideration which has the centrality and accessibility necessary to attract adequate numbers from across an extensive trade area.

5.3 It is clear that the key issue in the development of a District Centre is the ability to incorporate and establish a major retailer, such as a discount department store. The research and analysis undertaken by JHD suggests that a discount department store could be developed on a viable basis on the Chinderah site by 2008.

5.4 In contrast, the market potential for a discount department store at the Turnock Street site, because of lack of accessibility and the limited extent of the trade area which would be served, suggest sales only 60% of the sales of such a store at Chinderah. The limited access to the Turnock Street site from the surrounding region via low volume suburban roads rather than major arterials is a key issue in this conclusion. A District Centre at Turnock Street Kingscliff is therefore not viable, or at least would need to be deferred for several years after 2008.

83 Following receipt of the JHD Retail Assessment Report, the Council Planning Staff sought and obtained the advice of Patrick Partners (the Consultant which had prepared the Centres Study) in respect of the JHD Retail Assessment.

84 In its advice dated 28 March 2003, Patrick Partners suggested that whereas the retail analysis contained in the JHD Assessment “confirms what Patrick Partners have been advising the Council in respect of the size of the market” the analysis undertaken by JHD “misunderstands” the wider role envisaged for the proposed District Centre by wrongly limiting it to a retail component.

85 Patrick Partner’s advice was that the Council “should continue to support the Turnock Street location as the town centre for the district”.

86 At its meeting held on 2 April 2003, the Council considered a report from its Strategic Town Planning Unit on the Council’s draft Tweed Coast Strategy. The Report identified as the “most crucial component” of the draft Tweed Coast Strategy the location of the District Town Centre. The Report provide a summary of the workshop conducted by the Council on 4 March 2003 (in respect of which it is noted that the Applicant elected not to attend) including the presentation made by Patrick Partners (which included its critique of the Retail Assessment prepared by JHD Consultants). The Report submitted to the Council noted that it had two options—either to abandon the Strategy or to “finalise” the strategy by determining its relevant content. In respect of the latter option a series of recommendations were made in respect of the content of the draft Strategy including the following recommendation:

170 In submitting that that Environmental Study was “not the study required under s 57(2) in that it failed to include or to give consideration to a fundamental part of the required assessment”, the Applicant relied heavily upon the decision of McClelland CJ in Burns Philip Trustee Co v Wollongong City Council (1983) 49 LGRA 420.

171 In that case, the Chief Judge had emphasised the necessity for the environmental study to represent “a disinterested examination of the facts” having reached that conclusion in the light of his analysis of the then prevailing provisions of the EP&A Act as encapsulated in the following passage at 432/433:

Furthermore, there is a concept in Pt III of the Act which demonstrates a need for an objective consideration of a local environmental study. The very word "study" suggests a disinterested examination of the facts. When the study has been prepared council must place it on public exhibition (s 58) and people may then make submission as to the "aims, objectives, policies and strategies which the draft local environmental plan should adopt" (s 59). Significantly the council is forbidden to prepare a draft plan until after the expiration of the submission period (s 60) and it must consider any submissions in relation to the study because before the preparation of the plan is commenced" (s 61(o)) it must consider any submissions to aims etc. and in the light of those submissions determine the aims etc. to be adopted in the plan (s 61(b)). The draft plan must have regard to the study so as to achieve the aims etc. (s 61(d)). This fairly elaborate machinery is consistent only with a notion that there is no preconceived proposal for the zoning of the land, still less a preconceived development proposal. Rather it is envisaged that the council will look at the study area and place the information derived in the study on exhibition so that people can make submissions on the matter set out in the study and as to the aims etc. which should be adopted in any plan. Council is to consider all of those submissions before determining aims etc. and then goes to commence the preparation of a draft plan. These concepts can only support the notion that the study must be prepared by or on behalf of the council itself (as the words of s 56 would in any event indicate) and that it is not a compliance with the statute for the council simply to receive a study prepared by consultants on behalf of the developer.

172 A number of observations can be made in respect of the Applicant’s reliance upon the decision in Burns Philip. Firstly, it must be appreciated that that case was concerned with an environmental study undertaken on behalf of a prospective developer of the land the subject of the study. But more importantly, the decision was based upon the original provisions of the EP&A Act Part III concerning environmental studies as a prelude to the preparation of local environmental plans, which provisions were most materially and profoundly changed by the enactment of the Environmental Planning and Assessment (Amendment) Act 1985. In my judgment, the current provisions of the EP&A Act Part III do not support the analysis of the profoundly different prevailing provisions contained in the Burns Philip judgment. In particular, the present statutory regime does not support the view that the environmental study fundamentally constrains the content of a draft local environmental plan. The only statutory requirement concerning the relationship between an environmental study and a draft local environmental plan is that provided for by s 61, namely that the Council “shall prepare a draft local environmental plan having regard to the environmental study.

173 For the foregoing reasons, I am of the opinion that neither the EP&A Act s 57(2) nor the relevant “specifications” thereunder that were given to the Council in the present case required consideration of the retail studies that are relied upon by the Applicant.

174 Moreover, as earlier stated, I am satisfied that the Environmental Study was relevantly prepared by GeoLink “in accordance “ with the relevant specifications (s 57(2)). This is so, notwithstanding the fact that the reliance placed by the Environmental Study on the Centres Study (2001) and the draft Tweed Coast Strategy (2002) may have been undermined and overtaken by subsequent events (eg changes made to the exhibited draft DCP 51) following upon the Council’s decision on 2 July 2003 not favouring Turnock Street as the location for the District Centre. In so concluding, I find that those changes occurred so late in the period of six or seven months that the Environmental Study was under preparation as to be not realistically capable of being incorporated in the relevant content of the final version of the Environmental Study.

175 Moreover, in addition to those realistic time/space constraints I find that the changes were not of such a nature as to render the capability analysis of the subject land undertaken in the Environmental Study (despite its reliance upon the earlier studies) to be plainly erroneous or flawed. This is because the Council’s rejection of Turnock Street as the preferred location for the District Centre was not itself the product of any planning study, it simply being the product of the Council’s executive decision. Nor did the Council’s decision mean that the subject land (itself not preferred in the earlier studies) thereupon became either qualified as (or as a contender for qualifying as) the preferred location. This conclusion of an obvious fact is attested by subsequent events, namely (i) by the express terms of the DCP 51 as approved by the Council declaring the issue to be yet to be decided; (ii) by the third and final version of the Retail Strategy prepared by Core Economics leaving the question undecided; and (iii) by the Council’s non-acceptance of the Applicant’s (and its Consultant Town Planner’s) objections to the draft LEP Amendment No 14 based upon the Council’s decision not to favour Turnock Street as the location for the District Centre at Kingscliff.

176 It is to be noted that my consideration of the Applicant’s challenge to the validity of the Environmental Study (on the assumption, contrary to my holding, that the Council was duty bound to consider the retail studies) has confined attention to the period of 6 or 7 months that it was under preparation by GeoLink. In my judgment, that is the correct albeit confined temporal focus to realistically adopt, despite the fact that the Environmental Study was not publicly exhibited until December 2003 and January 2004, some two months after GeoLink had supplied the Council with the final version of the Environmental Study, by which time, the first and second versions of the draft Retail Strategy had been received (and the third and final version was received during the public exhibition of the Environmental Study). This is simply to adopt a realistic approach to the dictates of time/space and to the finitude of any time consuming task (such as the preparation of the Environmental Study). Once the task is completed, it is not fair or reasonable or realistic to criticise its content because of the advent of subsequent events. This is more especially so in the present case where the subsequent events comprise the delivery by the Council’s Planning Staff of three versions of the draft Retail Strategy (the latest version of which leaves open the question of the location of the District Centre at Kingscliff and where that draft Strategy has not been adopted by the Council and is subsequently found to be incomplete requiring additional work for which the Consultant is re-commissioned).

177 Accordingly, for all of the foregoing reasons, the Applicant’s attack on the Environmental Study for failing to consider the Retail Studies must be held to fail.

178 My conclusion that the Council (including its Consultant GeoLink) in preparing the Environmental Study was not bound to consider the retail studies has obvious consequences for the Applicant’s challenge based upon the same ground (ie failure to consider the retail studies) in respect of the Council’s decisions (of 29 November 2003 and 3 March 2004) in respect of the draft LEP Amendment No 14, unless some other basis can be established for holding that the Council, in making those decisions was duty bound to consider retail studies. If the only suggested source of duty was that founded on a relevant “specification” given pursuant to s 57(2) of the EP&A Act which I have held did not impose the alleged duty in respect of the preparation of the Environmental Study, no such duty bound the Council in undertaking its statutory functions in respect of draft LEP Amendment No 14.

179 The Applicant’s argument did not suggest any other source of statutory duty that the Council was bound to consider the retail studies either in undertaking its statutory task in terms of s 61 of the EP&A Act of preparing a draft local environmental plan “having regard to the environmental study” or in undertaking its statutory task in terms of the EP&A Act, s 68 of “considering submissions made” to draft LEP Amendment No 14 and of “submitting the draft” plan to the Director-General.

180 Accordingly, the Applicant has failed to establish any basis for its contention that in undertaking those respective statutory tasks in respect of draft LEP Amendment No 14 according to its decisions made on 19 November 2003 and 3 March 2004 respectively, the Council was bound to consider the retail studies.

181 For all of the foregoing reasons, I hold that the Applicant has not made out its case on ground (i).

.

182 In advancing this ground, the Applicant relies upon two separate alleged non-compliances with s 66 based upon the textual conflict in the draft instrument that I have earlier noted in par 37 of these reasons.

183 Firstly, it is alleged that the s 65 certificate issued by Mr Jardine (as the Director-General’s authorised delegate) was not relevantly a certificate with respect to draft LEP Amendment No 14 because of the textual conflict in that draft instrument.

184 Secondly, it is alleged that because of that same textual conflict the public exhibition was relevantly misleading and on that account was fatally flawed: (cf Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91, El Cheikh v Hurstville City Council (2002) 121 LGERA 293 and Smith v Wyong Council (2003) 132 LGERA 148).

185 In my judgment, the only respectable arguments that can be marshalled in support of these allegations of relevant non-compliances with s 66 are self-evidently founded upon dry literalism and excessive legalism. In my judgment, they must be wholly rejected as lacking any substantive merit. The argument based upon the s 65 certificate is contrary to the facts as it is clear beyond argument that the certificate was given in respect of the draft LEP Amendment No 14 that was exhibited. The textual conflict in the instrument did not affect this fact one iota.

186 The textual conflict in the draft LEP Amendment No 14 is both obvious and obviously resolvable if not resolved.

187 As I explained in par 36 of these reasons, the substantive effect of draft LEP Amendment No 14 was achieved via cl 4 which, by reference to the relevant incorporated map relevantly rezoned the subject land. The effectiveness of that rezoning wrought by cl 4 was not affected by the statement of the express aim contained in cl 2 of draft LEP Amendment No 14: vide s 25 of the EP&A Act.

188 Moreover, the obvious textual conflict was completely revealed and explained and resolved by the supporting materials that were included in the public exhibition of draft LEP Amendment No 14 in the sense that it was obvious that cl 2(a) had mistakenly referred to the 3(c) Trade and Commerce Zone instead of referring to the Industrial Zone.

189 The obvious textual conflict in draft LEP Amendment No 14 and its equally obvious resolution by dint of the clear content of the supplementary materials forming part of the public exhibition of draft LEP Amendment No 14 provide a sure foundation for the conclusion that the public exhibition of draft LEP Amendment No 14 was not relevantly “misleading” so as to vitiate that statutory process.

190 For all the foregoing reasons, I hold that the Applicant has not made out its case on this ground.

191 “Manifest unreasonableness” of an administrative decision was recognised in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 as providing a separate ground for judicial review. In Peko-Wallsend Mason J at 41 noted the existence in the decided cases – both in Australia and England—of the “considerable diversity in the readiness with which courts have found the test (“so unreasonable that no reasonable person could have come to it”) to be satisfied”

192 In Weal v Bathurst City Council (2000) 111 LGERA 181 Mason P expounded “Wednesbury unreasonableness” in the following passage at 188

The test is stringent. When, "the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another `a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits"' (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J, quoting Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 42). The decision must amount to an abuse of power (Attorney-General (NSW) v Quin at 36) or be so devoid of plausible justification that no reasonable person could have taken that course (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290). See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31.

193 The Applicant in its argument referred to the more recent decision of the Court of Appeal in Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10 where the Chief Justice in giving the Court’s judgment (agreed in by the other members of the Court) discussed this particular ground for the judicial review of the exercise of a statutory power in an extended passage commencing at par 127. It is sufficient for present purposes to confine quotation to the following passage at pars 127, 128 and 129:

Attorney-General (NSW) v Quinn

The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the Court avoids administrative injustice or error, so be it; but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

There are circumstances in which the outcome of a decision-making process will of itself indicate legal error. However, the courts must be slow to so find, because of the blurring of the distinction between legality and merits that can often arise when determining such a ground of judicial review.

illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds

Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002

Minister for Immigration and Multicultural and Indigenous Affairs

v SGLB

194 In advancing this ground, the Applicant’s argument once again depends upon an acceptance of its assertion that the Council was bound to consider the two particular retail studies it has identified. This asserted duty in turn depends upon the Applicant’s assertion that in preparing the Environmental Study, the Council was required to make an assessment of the commercial/retail needs of Kingscliff and of the Tweed Coast.

195 Again, my earlier conclusions holding that the Council was not bound to consider the retail studies and was not required when preparing the Environmental Study to make an assessment of the commercial/retail needs of Kingscliff and of the Tweed Coast, entirely undermine the Applicant’s present ground of challenge.

196 Absent the existence of a relevant duty to consider the retail studies or to make the assessment of commercial/retail needs etc there is simply no foundation to support the Applicant’s argument that “(T)he Council’s entire decision-making process under ss 66-68 of the EP&A Act was made absent that information (ie the retail studies) being disclosed to the decision-makers and under misapprehension that the information was not available at all and would not be so available for some time”.

197 In advancing that particular argument, the Applicant had relied upon the following passage from the judgment of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 at 563:

But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

198 However, for the reasons I have already given, in rejecting the Applicant’s attack on the validity of LEP Amendment No 14 based upon the assertion that the Council had failed to take into account a material consideration, (namely the retail studies) it simply cannot be said of those retail studies that they were “material that is readily available and is centrally relevant to the decision to be made”.

199 Once it is recognised that the Council was not bound to consider the retail studies, there is no basis for impugning the Council’s decision on 19 November 2003 to publicly exhibit draft LEP No 14 or the Council’s decision on 3 March 2004 to request the Minister to make draft LEP No 14.

200 In making each of those decisions, it is to be recalled that the Council was aware of the fact that the draft Retail Strategy was under preparation. However, on each occasion, the Council as a collegiate body, was unaware of the then prevailing content of the Retail Strategy. Although when on 3 March 2004 it decided to proceed with LEP Amendment No 14 it was unaware that the third and final version of the Retail Strategy had been provided by the Council’s Consultant to the Council’s Planning Staff some two months earlier, the fact remained that the Council’s Planning Staff had not reported to the Council on the draft Strategy because Mr Jardine in particular considered that additional input was required and ultimately some six months later the Council agreed to expand the Consultant’s brief so that the draft Retail Strategy might be finalised.

201 Having concluded that the Council was not duty bound to consider the retail studies, I find that the Applicant has not otherwise established that there was anything unreasonable in the two decisions of the Council made in respect of draft LEP Amendment No 14 to seek an Industrial rezoning of the relevant portion of the subject land, without knowing the then prevailing relevant content of the draft Retail Strategy or without awaiting the completion of that Strategy (which as subsequent events have shown, has remained incomplete more than 15 months after the third version of the draft had been submitted by the Council’s Consultant to the Council’s Planning Staff). Indeed, the relevant facts concerning the history of LEP Amendment No 14 demonstrate the reasonableness of the Council’s decisions to complete the rezoning process in respect of the subject land, notwithstanding the incompleteness and uncertainties of the draft Retail Strategy.

202 If, contrary to what I have held, the Council had been bound to consider the draft Retail Strategy, the question of the consequences of its failure to consider it at the relevant times of the Council’s decisions in respect of LEP Amendment No 14, would need to be explored because “Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the Court setting aside the impugned decision and ordering that the discretion be re-exercised according to law”: per Mason J in Peko-Wallsend at 40.

203 In the present case (and quite apart from the significant subsequent fact that has demonstrated that the draft Retail Strategy had not been completed to the Council’s satisfaction) is the equally significant fact that the relevant content of the third version of the draft Retail Strategy, had left quite up in the air and uncertain the question of the location of the District Centre in Kingscliff.

204 In the light of this uncertain relevant content of the third version of the draft Retail Strategy the decision taken by Mr Jardine and other Council’s Senior Planning Staff not to report to the collegiate Council, the draft strategy because of his opinion that the draft Strategy required more work to be undertaken, has not been shown to be an unreasonable decision on his part.

205 There are two other matters that would require exploration, if contrary to what I have held, the Council in the preparation of the Environmental Study was bound to make an assessment of the commercial/retail needs in Kingscliff and the Tweed Coast.

206 The first concerns the fact that Mr Jardine, as the authorised delegate of the Director-General issued the s 65 Certificate in respect of draft LEP Amendment No 14. This fact raises the question whether the Department’s requirements in respect of the Environmental Study may be taken to have been satisfied by that subsequent action.

207 The second matter concerns the Council’s argument, based upon the reasoning of the majority judgment of the Chief Justice in Smith v Wyong Council (2003) 132 LGERA 148, that non-compliance by the Environmental Study with any specification given pursuant to the EP&A Act, s 57(2) would not produce invalidity either of the Environmental Study or LEP Amendment No 14.

208 However, I prefer not to express final opinions on these important questions in view of my conclusions in the present case that no relevant specification for the purposes of s 57(2) was given requiring the Environmental Study to make an assessment of the commercial/retail needs in Kingscliff and the Tweed Coast.

209 For all the foregoing reasons, I hold that the Applicant has not established this ground.

F. CONCLUSIONS AND ORDERS

210 For all of the foregoing reasons, I hold that the Applicant has not established any of its grounds for the alleged invalidity of LEP Amendment No 14 and accordingly, the class 4 application must be dismissed. The question of costs was not argued and accordingly must be reserved, although the total failure of the proceedings would ordinarily mean that the Council should receive an order for its costs.

211 Accordingly, I make the following orders

1. The class 4 application is dismissed.

2. The question of costs is reserved.

3. Exhibits be returned.

27/07/2007 - inserted missing paragrah numbers 1 - 193 - Paragraph(s) 1-193

Actions

Download as PDF Download as Word Document

Citations

Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 617

Most Recent Citation

Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109

Cases Citing This Decision

4

Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388

Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83

Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2009] NSWLEC 109

Cases Cited

10

Statutory Material Cited

5

Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10

Kioa v West [1985] HCA 81

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

CITATION:	Gales Holdings Pty Ltd v Minister for Infrastructure and Planning and Anor. [2005] NSWLEC 617 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Gales Holdings Pty Ltd RESPONDENTS: Minister for Infrastructure and Planning and Anor.
FILE NUMBER(S):	41326 of 2004
CORAM:	Bignold J
KEY ISSUES:	Injunctions and Declarations :- challenge to validity of LEP Amendment—Alleged failure to consider relevant materials—alleged unreasonabless of Council’s decisions.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 57 65 66 69 and 70
CASES CITED:	Burns Philip Trustee Co v Wollongong City Council (1983) 49 LGRA 420; El Cheikh v Hurstville City Council (2002) 121 LGERA 293; Litevale Pty Ltd v Lismore City Council (1997) 96 LGERA 91; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549; Prineas v Forestry Commission of NSW (1984) 53 LGRA 160; Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 · Smith v Wyong Council (2003) 132 LGERA 148; Weal v Bathurst City Council (2000) 111 LGERA 181
DATES OF HEARING:	27-29/04/2005
DATE OF JUDGMENT:	11/01/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr T Robertson SC with Ms J Jagot, Barrister SOLICITORS Woolf Associates FIRST RESPONDENT submitting appearance SECOND RESPONDENT Mr J Webster SC with Dr S Berveling, Barrister SOLICITORS Stacks the Law Firm